A new bill would make much of the personnel files of high-ranking, and highly paid, state employees public record.
The Legislature’s Joint Judiciary Committee sponsored Senate File 20 – Public records-personnel files, but the full body of lawmakers won’t take the legislation up until its March in-person session.
The bill specifies high-ranking state offices whose personnel records would be considered matters of public record. The list includes the attorney general, the directors of state agencies, the presidents of community colleges and the University of Wyoming, city managers, members of the Public Service Commission and members of the State Board of Equalization, a body that hears tax issues.
The bill would make personnel files of people in such high-impact positions — including performance assessments and job application materials — public record.
The Wyoming Public Records Act today includes a number of exemptions government entities can use to avoid disclosing information and documents. One of those exemptions is for personnel information, which is often invoked when public officials resign or lose their posts suddenly and for reasons unknown to the public.
“I would say it’s one of the most common exemptions used,” Cheyenne attorney Bruce Moats said. “Often the questions that come up about why someone left are about those high-level officials who were involved not only in forming policy for their particular agency but in implementing it.”
The behavior of agency heads and others also reflects on the elected officials — such as the governor or school board officials — who appointed them, Moats said.
WyoFile, the Casper Star-Tribune, the Laramie Boomerang and the Wyoming Tribune-Eagle tested the legality of those exemptions in 2019 when the organizations sued for records related to the demotion of former University of Wyoming President Laurie Nichols.
After abruptly demoting Nichols, UW’s board of trustees initially declined to provide reasoning for the action. The news organizations sued the university for records of a performance evaluation and any investigations conducted into Nichols’ performance, claiming that the need of the public to understand the trustees’ actions outweighed the exemption claims.
In December 2019, the news organizations prevailed in the lawsuit in a district court and the trustees declined to appeal the matter to the Wyoming Supreme Court. Records ordered released by a judge showed the trustees hired an outside law firm to investigate Nichols.
Because the lawsuit did not go to the state supreme court, the judge’s ruling creates a persuasive precedent for future records fight, but is not definitive statewide, said Moats, who argued the case for the news organizations.
More clarity in statute
In the wake of that lawsuit, the university’s lawyers reached out to lawmakers seeking changes to some aspects of the public records law. “The university is not seeking more or less transparency,” a May 7, 2020 memo from UW general counsel Tara Evans reads, “but we are advocating for more clarity in the language of the exemptions to allow public records officers to more efficiently and effectively respond to requests for public documents with less ambiguity and without the need for interpretation.”
Dale Bohren, publisher emeritus of the Casper Star-Tribune, helped lawmakers develop the bill. “Arguably, a person in a position like the president of UW has impact on every person in the state,” Bohren said.
That level of impact applies to the other officials listed in the bill as well, he said. “If there’s behavior issues [with people in those positions], we should know about them.”
Rep. Chuck Gray, who brought SF 20 to the judiciary committee, called it a “pro-transparency bill,” and said it was designed to help not only journalists but the entirety of the Wyoming public understand the positions of high-ranking officials.
“I’m a huge supporter of transparency,” Gray said in an emailed comment. “That is why I support and have worked diligently to advance SF20.”
After the successful lawsuit, Bohren said he did not intend to seek further changes to statute. But he worried the university’s May memo might have led to new, higher hurdles to transparency. “I thought [the memo] was strengthening their ability to not disclose information that was in the public interest,” he said.
The memo asked lawmakers to define a personnel file in statute, and to do the same for the term “sociological data.” Public record law calls on agencies to deny access to personnel files and sociological data. The memo also asked lawmakers to consider whether agencies should redact sensitive material from a record or withhold an entire document. Evans noted the latter is “easier on resources but less transparent.”
“Oftentimes, the University receives complicated and voluminous key word search requests,” Evans wrote. “A majority of the time is spent redacting information that the University is not allowed to disclose per the law.”
In her ruling on the case, Albany County District Court Judge Tori Kricken wrote that high-ranking public officials “have a decreased interest in privacy.”
“There is a well-known expression applied to those in public office, ‘If you can’t stand the heat, you’d better stay out of the kitchen,’” Kricken wrote, quoting another court case.
Passing SF 20 into law might have another, more abstract impact for those working in well-paid and high-profile public positions as well, Moats said. “People tend to do things the right way when someone is watching more than they do when people are not watching,” he said.